Disciplinary Hearings

By Caleb McKellar

Disciplinary hearings in the Workplace

If an employee has allegedly breached their employment contract or a work place policy, the employer must hold a disciplinary hearing to address the employee and make a final decision as to the alleged wrongful conduct.

A disciplinary hearing is a formal meeting where the employer can properly investigate the merits of the charges against the employee being accused. This process is prescribed by Schedule 8 of the Labour Relations Act 66 of 1995.

A disciplinary hearing is a meeting between an employer and an employee where the employer will discuss an allegation of misconduct with an employee.

What should be included in the notice to attend a disciplinary hearing?

If an employee wants to hold a disciplinary hearing, they need to inform the employee in writing about the hearings and the reasons for the hearing. The employer must prepare a formal notice. In such a notice, the following information should be provided by the employer to ensure procedural fairness:

  1. Date, time and place of the hearing;

  2. The charges laid against the employee;

  3. Notification to the employee of the option to be represented;

  4. Notification to the employee of the right to an interpreter; and

  5. Notification to the employee of the right to call witnesses to prove its case and innocence in the case levelled against him/her.

How should the “charge” be formulated?

The charge should be formulated in precise and simple language that the employee can understand. It is unfair for an employer to charge an employee with two or more separate forms of misconduct in circumstances where the conduct only constitutes one offense.

How does a disciplinary hearing work?

Employees are often stressed and overwhelmed when they are asked to attend a disciplinary hearing. A disciplinary hearing by nature is stressful and taxing for an employee. However, employees must always remember that a disciplinary hearing is their opportunity to be heard and to give their version of events.

Ultimately, the purpose of a disciplinary hearing is to provide the accused employees with an opportunity to lead evidence and plead their innocence before a final decision is made.

From an employer’s point of view, the disciplinary hearing is essential as it ensures that before a decision is made the employer can ensure that there are in fact substantive reason to dismiss the employee.

Employers are responsible for ensuring that their employees are treated fairly both procedurally and substantively. In any disciplinary proceeding, the proper protocol must be followed, and employees must be aware of their rights and entitlements.

What is the difference between procedural and substantive fairness?

Dismissals must be both procedurally and substantively fair.

Procedural fairness refers to the process which the employer follows when dismissing an employee. If a dismissal is procedurally fair it means that the employer has followed a fair and proper procedure before dismissing the employee. For example, in order for a dismissal to be procedurally fair, the employee must hold a disciplinary hearing.

Substantive fairness refers to the nature of the charge against the employee. Substantive fairness relates to the existence of a fair reason for the employer to dismiss an employee.

What are the requirements for a fair disciplinary hearing?

It is recommended that a disciplinary hearing is conducted by an independent and impartial chairperson.

The chairperson should be objective and fair. The chairperson is responsible for outlining the violation or misconduct and explaining the hearing process to the parties.

The disciplinary hearing must start with the employer stating the alleged breach or charge and providing their evidence to support the allegation. Once the employer has stated the case against the employee, the employee is then allowed to present their version of events. Remember that both parties may call witnesses and the Chairperson may question these witnesses for clarity if necessary.

What is the Chairperson’s role?

The Chairperson is responsible for outlining the violation or misconduct and explaining the hearing process to the parties.

The Chairperson must ensure that both sides are given a fair chance to prepare their case and lead evidence. The Chairperson must ensure that the witnesses are not led by the employee or employer.

The Chairperson will decide on the employee's guilt or innocence after hearing from both the employer and the employee, as well as evidence and witnesses. If the employee is found guilty, this decision will be made on the basis of a balance of probabilities, and it will contain an appropriate consequence or conclusion.

In terms of Schedule 8 of the Labour Relations Act (66 of 1995)

  • An employer must investigation and prepare evidence to prove the transgression or misconduct that the employee has allegedly committed. This does not, however, have to be a formal inquiry;

  • Next,the employer must issue the employee with a Notice to attend the hearing in a language that the employee can reasonably understand.Each party must have a reasonable time to prepare a response to the allegation, or where necessary, get the help of a trade representative. This is usually a minimum of 48 (forty-eight) hours.

  • The disciplinary hearing must then be held on the proposed date and time, at which point, the employer and employee will each have a chance to state their case and respond to the allegations.

  • After the hearing, the employer should communicate the findings of the hearing and decision ultimately taken to the employee.

(Though not always a formal requirement, the employer should provide the employee with written notification of the outcome of the hearing and whether it is punitive or dismissive in nature.